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IN THE COMPANIES TRIBUNAL OF THE REPUBLIC OF SOUTH AFRICA

“The Tribunal”

                                                                        Case Number: CT 020FEB2018

In the matter between:

African Jade Mining (PTY) LTD                                                                           Applicant

(Registration Number: 1999/003158/07)

AND

African Jade Mining (PTY) LTD                                                                1^ST Respondent

(Registration Number: 2015/439373/07)

Companies and Intellectual Property Commission                               2^ND Respondent

DECISION

INTRODUCTION:

[1] The applicant is African Jade Mining (Pty) Ltd, a private company incorporated under the Company Laws of the Republic of South Africa, having its principal place of business at 62 Rooiberg Street, N4 Gateway Industrial Park, Willow Park Manor, X65, Pretoria.

[2] The 1^st respondent is African Jade Mining (Pty) Ltd, a company registered with the Companies and Intellectual Property Commission, with its registered business at 3655 Ext 10, Barberton, Mpumalanga.

[3] The 2^nd respondent is the Companies and Intellectual Property Commission (the Commission), a juristic person established in terms of S.185 of the Companies Act 71 of 2008 (the Act).

[4] The applicant submits in its affidavit in terms of S. 142(1) (2) of the regulations that it became aware during the second part of 2017 that first respondent was incorporated under a name identical to that of applicant. On 06 September 2017, applicant caused a letter of demand to be addressed on behalf of applicant to the directors of first respondent, wherein it advised the directors that their company had been registered with the same name as that of applicant, in contravention of S.11(2)(a) of the Act, and requesting the first applicant change its name accordingly.

[5] The first respondent responded advising that its directors would meet to consider changing the company name. After various communications it became evident that first respondent was not attending to the name change when it failed to revert to communications from applicant. On 28 February 2018 the applicant served this application on the first respondent. The first respondent did not file its answering affidavit within the stipulated 20 day period and as a result applicant has applied to the tribunal for a default order in terms of S. 153(2) of the regulations.

[6] The applicant has filed this application in terms of S160  of the Companies Act (the Act), for a determination by the tribunal whether the first respondent’s company name, African Jade Mining (Pty) Ltd, satisfies the requirements of  S.11 of the Act, particularly  S.11(2)(a)(i). The applicant further prays for a default order:

1.  directing the second respondent to act in terms of S.14(2)(b) to amend the first respondent’s company name by entering its registration number 2015/439373/07, followed by (Pty) Ltd as the interim name of the company in the companies register;

2.  directing the first respondent to file an amended notice of Incorporation using a satisfactory name within a reasonable time set by the tribunal.

3.   for costs of the application to be paid by the first respondent; and

4.  for further and/or alternative relief.

Submissions by Applicant

[7] Applicant deposed to an affidavit as required by Regulation 142(2), and provided that in 2017 it came to the applicant’s attention that the first respondent was registered with the same name as the applicant, and noted that the first respondent was incorporated after the applicant, some 16 years later.

[8] On 06 September 2017, the applicant sent a letter of demand to the directors of the first respondent advising them that their company name is the same as that of applicant and that first respondent’s name was registered after applicant’s name. The letter also requested that first respondent attend to change its name and requesting first respondent to confirm that it would attend to do so within 14 days of receipt of the demand.

[9] On 29 September 2017, LA Business Consultants, acting on behalf of first respondent, responded requesting a week’s extension to respond after meeting with the directors of first respondent. LA Business Consultant’s did not respond within the requested extension and after a few  follow- up communications by applicant, LA Business Consultants responded by requesting a further week’s extension.

[10] The first respondent failed to adhere to the demand by the applicant. LA Business Consultants, after being given a further week’s indulgence by the applicant, failed to revert as undertaken. 

[11] Applicant submits that first respondent’s name is contrary to the provisions of S.11 (2)(a)(i) of the Act, as it is the same as that of applicant.

[12] The applicant has filed this application in terms of S160  of the Companies Act (the Act), for a determination by the tribunal whether the first respondent’s company name, African Jade Mining (Pty) Ltd, satisfies the requirements of  S.11 of the Act, particularly  S.11(2)(a)(i). The applicant further seeks an administrative order in terms of S.14 (2) (b), directing the second respondent to amend first respondent’s company registration number followed by (Pty) Ltd as the interim name of the company in the companies register and on the registration certificate, and further directing first respondent to file an amended Notice of Incorporation using satisfactory name within a reasonable time set by the tribunal.

Application of the Law

[13] This is an application in terms of S.160 read with S.11 (2) of the Companies Act. The applicant seeks relief in terms of S. 160 (1) of the Act, which provides for specific remedies available in instances where the Tribunal has determined that an application complies with the requirements of S.11. It states:

“ A person to whom a notice is delivered in terms of this Act with respect to an application for reservation of a name, registration of a defensive name, application to transfer the reservation of a name or the registration of a defensive name, or the registration of a company’s name, or any other person with an interest in the name of a company, may apply to the COMPANIES TRIBUNAL in the prescribed manner and form for a determination whether the name, or the reservation, registration or use of the name, or the transfer of any such reservation or registration of a name, satisfies the requirements of this Act (s11).”

[14] Section 160 (2)(b) which is relevant to this case, provides that an application in terms of subsection 1 above, may be made “on good cause shown” at any time after the date of reservation or registration of the name that is the subject of the application, in any other case.

[15] Section 160(3) provides for the powers of the tribunal where subsections (1) and (2) have been satisfied. It provides as follows:

“After considering an application made in terms of subsection (1), and any submissions by the applicant and any other person with an interest in the name or proposed name that is the subject of the application, the COMPANIES TRIBUNAL-

(a)Must make a determination whether that name, or the reservation, registration or use of the name, or the transfer of the reservation or registration of the name, satisfies the requirements of this Act (s.11); and

(b)May make an administrative order directing-

(i)       The Commission to-

(cc) cancel the reservation of a name, or the registration of a defensive name.

(ii)      a company to choose a new name, and file a notice of amendment to its Memorandum of Incorporation, within a period and on any conditions that the tribunal considers just, equitable and expedient in the circumstances, including a condition exempting the company from the requirement to pay the prescribed fee for filing the notice of amendment contemplated in this paragraph.”

Further relief is sought by applicant from the second respondent in terms of S. 14(2) (b) which provides as follows:

“If the name of a company, as entered on the Notice of Incorporation- is a name that the company is prohibited, in terms of section 11(2) (a), from using, the Commission-

(i)       must take the steps set out in subsection (1)(b), using the company’s registration number, followed by “(Pty) Ltd”, as the interim name of the company in the companies register and on the registration certificate;

(ii)      must invite the company to file an amended Notice of Incorporation using a satisfactory name.”

[16] The tribunal is therefore tasked with considering this application and satisfying itself that it complies with the requirements of s. 11 (2)(a)(i) which provides:

“The name of a company must-

(a)Not be the same as-

(i)       The name of another company...”

Evaluation

[17] In considering this application, the tribunal must firstly consider whether there is good cause to consider this application when the first respondent was registered in 2015 and this application was brought by applicant in 2018, as required by S.160 (2) (b). The applicant has advised that it became aware of the first respondent’s name the second part of 2017, whereafter the applicant sent a letter of demand to first respondent to change its name. Communication exchanges took place between applicant and first respondent’s representatives. There was some positive progress in discussions as, at some point, first respondent’s representatives indicated that the directors of first respondent would be meeting to discuss the name change of the company. However, after affording first respondent’s representatives time extensions to attend to this issue with the directors, first respondent’s representatives failed to respond to further communications by applicant, whereafter, applicant through the Sheriff of the court, served this application on the first respondent. The tribunal is therefore satisfied that there is good cause to consider this application in terms of S.160 (2)(b) of the Act. The applicant made every endeavour to resolve this issue with the first respondent when it first became aware that first respondent had the same company name as applicant.

[18] Section 11 lists the criteria applicable for company names. Section 11(2)(a)(i) specifically provides that the name of a company must not be the same as the name of another company. It is unclear why the Commission registered a company in 2015, with a name that is identical to another company name registered with the Commission in 1999. This is clearly prohibited by the Act. Two different companies in the same industry (mining) cannot be registered with identical names as this would give rise to the likelihood of confusion amongst persons who deal with those companies.

FINDINGS

[19] The name of first respondent African Jade Mining (Pty) Ltd does not satisfy the requirements of S.11 of the Act, particularly S.11 (2) (a)(i).

ORDER:

1.  The second respondent is ordered to act in terms of S.14(2)(b) by entering first respondent’s registration number 2015/439373/07, followed by “(Pty) Ltd” as the interim name of the company in the companies register and on the registration certificate;

2.  The second respondent is further ordered to invite first respondent to file an amended Notice of Incorporation using a satisfactory name.

3.  The first respondent is exempted from paying costs of this application.

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B. Zulu

30 April 2018

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